Owers Maintenance Corp., 100 (1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Owners Maintenance Corp. and Thomas Soto. Case 2-CA-14044

September 19, 1977 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND MURPHY

On June 16, 1977, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed a brief in support of the Administrative Law Judge's Decision and a letter in reply to Respondent's exceptions, and the Charging Party filed a brief in answer to Respondent's exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding.to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify his Remedy,' and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Owners Maintenance Corp., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

In accordance with our decision in Florida Steel Corporation, 231

NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the 'adjusted prime interest rate' as used by the Internal Revenue Service in calculating interest on tax payments was at least 7percent.

DECISION

STATEMENT OF THE CASE

LOWELL GOERLICH, Administrative Law Judge: The charge filed by Thomas Soto on December 30, 1975, was served by registered mail on the Owner's Maintenance Corp., Respondent herein, by registered mail on or about December 31, 1975. A complaint and notice of hearing was I There being no opposition thereto, General Counsel's motion to correct transcript isgranted and the transcript iscorrected accordingly.

2 The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability. the demeanor of the witnesses, and the teachings of N. L.R. B v. Walton Manufacturing Company & Loganville Pants 232 NLRB No. 23 issued on November 29, 1976. The complaint charged that Thomas Soto and James Veve were discharged by Respondent on July 3, 1975, because of their activities in and support of Local 32B Service Employees International Union, AFL-CIO, herein called Local 32B or the Union, in seeking to enforce the Union's collective-bargaining agreement with Respondent and because these employees engaged in other concerted activity for the purpose of collective bargaining and mutual aid and protection in violation of Section 8(aX3) and (1) of the National Labor Relations Act, as amended, herein referred to as the Act.

Respondent filed a timely answer denying that it had engaged in any of the unfair labor practices alleged.

The case came on for hearing at New York, New York, on March 1, 2, 3, and 4, 1977. Each party was afforded a full opportunity to be heard, to call, examine and crossexamine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered.' FINDINGS OF FACT,2

CONCLUSIONS, AND REASONS THEREFOR

1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of New York.

   At all times material herein, Respondent has maintained its principal office and place of business at 426 Lexington Avenue, in the city and State of New York, and various other places of business in the State of New York, including a location at 1 Penn Plaza, New York, New York, where it is, and has been at all times material herein, continuously engaged in providing cleaning and maintenance services and related services.

   At all times material herein, Respondent has been a member of the Realty Advisory Board (herein called RAB), a multiemployer association which exists for the purpose, in whole or in part, of collective bargaining with labor organizations, including Local 32B.

   At all times material herein, Respondent, as a member of RAB, has been party to, and bound by, a collectivebargaining agreement between RAB and Local 32B.

   During the past year, which period is representative of their annual operations generally, the employer-members of RAB, in the aggregate, and in the course and conduct of their business, purchased cleaning materials and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to their place of business in interstate commerce directly from States of the United States other than the State in which they are located.

   Respondent is,and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record.

   No testimony has been pretermitted.

   100

   OWNERS MAINTENANCE CORP.

2. THE LABOR ORGANIZATION INVOLVED Local 32B is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act.

3. THE UNFAIR LABOR PRACTICES Thomas Soto and James Veve were discharged on July 3, 1976, because they falsely answered 'No' to the question on their application for employment, 'Have you ever been arrested? (Except for traffic violations).' Veve's application is dated January 30, 1974, although on the application it is noted that he 'started work January 28, 1974.' Soto's application bears the date of May 7, 1973. He started work shortly thereafter in May 1973.

   The discharges were submitted to arbitration and, on April 13, 1976, an award was rendered which did not result in the full reinstatement of Soto and Veve. Respondent claims that the arbitrator's opinion and award disposes of the issues raised in the complaint and that the complaint should be dismissed. The General Counsel strongly maintains that the arbitrator's opinion and award are vitiated by the rule in Spielberg Manufacturing Company, 112 NLRB 1080 (1955),3 and that a finding ought to be entered that Respondent violated Section 8(a)(3) by its discharges of Soto and Veve.

   The arbitrator considered the following questions which are also the issues before me:

   (1) Did the Company have just cause to discharge the grievants? (2) Were the grievants discharged for engaging in union activity? (3) Did the leafleting activity engaged in by the grievants constitute sufficient disloyalty toward the Company to justify a denial of reinstatement? (4) Was the distribution of leaflets protected by law? In regard to the first question, the arbitrator opined and found:

   The record is devoid of any evidence to indicate how the Company may have been prejudiced by the grievants' misrepresentations on their job application, other than the contention that they must have been 'untrustworthy' if they lied on their applications. In addition, the grievants had worked for over two years and one year respectively with concededly satisfactory work records.

   Accordingly, the falsification of job applications by Soto and Veve did not constitute just cause for discharge.

   Since the foregoing arbitrator's findings meet the criteria of the Spielberg case and are supported by substantial I In the Spielberg case the Board held that in order for an arbitrator's award to be binding on the Board the proceedings must appear fair and regular, the parties must have agreed to be bound, and the arbitrator's decision must not have been 'clearly repugnant to the purposes and policies of the Act.' It is the latter criterion that the General Counsel asserts was not met by the arbitrator's opinion and award in the instant case 4 These findings are sufficient to raise an inference of unlawful motivation on the part of Respondent in view of the dischargees' known union activities.

   '[I If his discharge was even partially motivated by his [an employee's I evidence in the record as a whole (see Illinois Bell Telephone Company, 221 NLRB 989 (1975)), they are binding on me and I find that Veve and Soto were discharged without just cause.

   As to the second question, i.e., 'Were the grievants discharged for engaging in union activity?', the arbitrator found:

   There is a substantial amount of evidence on the record which indicates that the grievants may have, at least in part, been discharged for reasons other than falsification ofjob applications. This evidence includes;

   Cuomo's continued investigation of the grievants after several weeks of fruitless observation despite the questionable reliability of an anonymous tip that they had been involved in thefts in the buildings; the fact that the decision to discharge the grievants was made with no investigation beyond Cuomo's concededly incomplete and at least partially inaccurate report; and,

   Isolini's memorandum which stated that the grievants had been a 'continuing problem' without any explanation as to what those problems were.4

   The mere fact, however, that the Company may have had reasons other than falsification of employment applications for discharging the grievants is not by itself an indication that the grievants were discharged...